“With Respect To”

After last Thursday’s “Drafting Clearer Contracts” seminar in Dallas for West LegalEdcenter, I had the pleasure of having dinner with longtime reader and commenter Chris Lemens. He asked me about with respect to. This one’s for you, Chris.

According to Garner’s Modern American Usage, “The phrases with respect to and in respect of are usually best replaced by single prepositions.” I decided to test that by examining a random assortment of instances of use of with respect to in contracts filed on the SEC’s EDGAR system.

Here are some instances where, I suggest, with respect to could indeed be replaced by another preposition:

… unless and until (i) the Registration Statement filed with the Commission with respect to [read for] a Registration pursuant to a Demand Registration has been declared effective by the Commission …

“Lock-up Period” shall mean, with respect to [read for] the Initial Shares, the period ending on …

The holders of certificates previously evidencing shares of DTBC Stock, outstanding immediately prior to the Effective Time, shall cease to have any rights with respect to [read in] such shares of DTBC Stock except as otherwise provided herein or by law.

… and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to [read for] any of the foregoing matters.

No dividends or other distributions declared or made after the Effective Time with respect to [read on] SFNC Stock with a record date after the Effective Time shall be paid to …

Alternatively, some other surgery might be in order:

… the CIO may revoke or change Borrowing Instructions with respect to a Fund [read a Fund’s Borrowing Instructions] by notifying the Credit Facility Team.

“Prospectus” means with respect to each Borrower the prospectus required to be delivered by the Borrower to offerees of its securities under the Securities Act of 1933 [read a prospectus that under the Securities Act of 1933 a Borrower is required to deliver to offerees of its securities].

Add to this second category an example (not from a contract) that Garner offers as an example of an instance where you can replace with respect to with a single preposition:

Clinton … has continued to enjoy stronger support from women than men even with respect to [read in] the Paula Jones case.

But in this example, replacing with respect to with in doesn’t work: it would suggest that the women and men in question are somehow directly involved in the Paula Jones case. I’d make a broader change. For example, I might say instead in his handling of.

Finally, here are three two [second example moved above] instances where I can’t think of any way of replacing with respect to:

… any reference in this Agreement to materiality with respect to either party shall, as to DTBC, be deemed to be …

“Prospectus” means with respect to each Borrower the prospectus required to be delivered by the Borrower to offerees of its securities pursuant to the Securities Act of 1933, as amended.

“Affiliate” means, with respect to any specified Person, any other Person …

Note that in each of the previous three examples, with respect to links something to a party or other person. I wonder whether I can draw some general conclusion from that. Further trolling on EDGAR awaits.

So, see whether you can replace the rather stuffy with respect to with a single preposition or a broader fix, but don’t feel bad if in some instances with respect to is your best option.

[Updated April 1, 2014: You’ll note the back and forth in the comments; I’ve also discussed this on Twitter. I’ve attempted to wean myself off of with respect to. I’ve used as to in contexts analogous to the final two examples above, just to see what it feels like. Ultimately, I can’t get worked up about with respect to. It’s a little bit wordy, but it’s not confusing. I’d rank it very low in the list of issues facing traditional contract prose.]

Posted in Selected Usages | 18 Comments

  • http://www.lawnotes.com D. C. Toedt

    The replacement word “concerning” might also work in many of these cases; e.g., “Clinton … has continued to enjoy stronger support from women than men even **with respect to** [read: concerning] the Paula Jones case.”

    • Chris Lemens

      D.C.:

      Or “about.”

      Chris

      • Westmorlandia

        “regarding” would also work in many cases.

        • Chris Lemens

          Westmorlandia:

          I can’t see any cases where “regarding” would be superior to all of “for,” “about,” and “related to.”

          Chris

          • http://www.adamsdrafting.com/ Ken Adams

            OK, how about this: “Representative” means, [as to] an entity, any of that entity’s ….

            Chris, I don’t think any of your three favorites works. I think it’s between Westmorlandia’s “regarding” and Vance’s “as to.” Unless I revert to “with respect to”!

          • Chris Lemens

            Ken:

            How is this version unclear?
            “Representative” means, for any entity, any of that entity’s …

            Chris

          • http://www.adamsdrafting.com/ Ken Adams

            The more I think of using for in this context, the less objectionable it becomes! That’s because we’re not dealing with clarity here: even with with respect to, there’s no risk of confusion. Instead, we’re dealing with intangibles.

  • Chris Lemens

    Ken:

    In your last set of examples, I was thinking about some variation on “as related to.” It is no better than “with respect to,” but it clued me into the fact that at least some instances of “with respect to” might be hidden cases of the issues you wrote about in your discussion of “related to or arising from.” There might be some consistency to be found in replacing “with respect to” with “as related to,” if we concluded that it really means the same thing. I think it does. That is, the term “related to” indicates any reasonable connection, not just causality. Similarly, “as related to” in a definition signals any reasonable connection.

    I think “for” probably works for most of those examples, though. The entire phrase in which “with respect to” is embedded is probably not needed in the first of the three examples.

    Also, needless variations include “in respect to” and “in respect of” and “in connection with.”

    Chris

    • Vance_Koven

      In ordinary writing one might substitute “as to” for “with respect to” and the like. I don’t see why that wouldn’t work in the last set of examples.

      • Chris Lemens

        Vance:

        I don’t see “as to” being very ordinary. I think it would work, but I think the other alternatives are better. “As to” still seems no more precise than using some variation on “related to.” Using “related to” consistently to signal any reasonable connection seems attractive to me. But if I can use “for” or “about” or some other narrower preposition, I would rather do that. Putting it another way, I see “as to” as being in the same sort of broad and indefinite category of language as “with respect to,” so I’d prefer to have just one signal for that situation.

        Chris

  • AWrightBurkeMPhil

    1/ I would be more nearly absolute in your rejection of “with respect to” and its variants, because I can’t think of any examples (including your problem three) in which Chris Lemens’s excellent suggestion of “for” wouldn’t do nicely. Even if Chris is correct that “in relation to” is better than “with respect to,” why bother with either when there’s “for”?

    2/ The runner-up is Vance Koven’s suggestion of “as to.” It’s in second place only because it’s two words instead of one, and a couple of characters longer (counting the space) than “for.” D.C. Toedt’s “concerning” is in third place for deficient brevity.

    3/ That said, it may be better in some or many cases to do surgery than simply to put “for” in place of every “with respect to.” As Chris noted, “with respect to” signals an unspecified relationship. Maybe one should just tighten the sentence. That’s what I would do to your second problem example:

    BEFORE:

    “Prospectus” means *with respect to* each Borrower the prospectus required to be delivered by the Borrower to offerees of its securities pursuant to the Securities Act of 1933, as amended.

    AFTER:

    “Prospectus” means the prospectus the Securities Act of 1933 requires each Borrower to deliver to offerees of its securities.

    • http://www.adamsdrafting.com/ Ken Adams

      Regarding the first and third of my final set of examples, I don’t think for works. I’m prepared to use Vance’s as to.

      Regarding the second example, yes, your version is an improvement. How could I have been so blind! :-) But I think I can improve on your version:

      “Prospectus” means a prospectus that a Borrower is required under the Securities Act of 1933 to deliver to offerees of its securities.

      • AWrightBurkeMPhil

        Grasshopper is puzzled. The improvement is replacing the active voice with the passive?

        • http://www.adamsdrafting.com/ Ken Adams

          In your version, the actor is … a piece of legislation. That’s not what we really care about. We care more about the Borrower.

          • Chris Lemens

            Ken:

            I say boo! Passive voice is bad! I prefer AWB’s version. (Except I’d put “that” before “the Securities Act.”)

            Chris

          • AWrightBurkeMPhil

            Emboldened by you, Chris, I’ll says this: unless you ban the passive altogether, the issue is line-drawing, not principle.

            In MSCD 3.10, Ken says “Use the Active Voice Unless the Passive Voice is Appropriate.”

            When is the passive appropriate?

            Ken says

            (1) when the actor is unknown or unimportant (“the deed was recorded on April 2, 2014″) and

            (2) when you want to focus on the thing being acted on rather than on the actor.

            In the definition of “Prospectus,” Ken says “we really care about” the Borrower more than about the legislation, so it’s better to make the Borrower the subject and the legislation the by-agent.

            Ken’s position highlights the subjective nature of exception (2).

            In defining “Prospectus,” I personally don’t care more about the Borrower than about the legislation, so I would just say (in the active voice) that the prospectus is the prospectus that the law makes the borrower give to its offerees.

            Ken “cares” more about the borrower and “wants to focus” on the borrower, so he demotes “the legislation” to the status of by-agent in a passive-voice sentence.

            It’s hard to argue when the issue is “caring more about” and “wanting to focus on” things, especially since we apparently care enough about the actor to include it in the sentence, just not as the subject. That’s slicing it fine.

            My takeaway from the discussion is that Ken permits exceptions to the anti-passive rule whenever the individual drafter cares more about or wants to focus on the “thing acted on” than on the “actor.” In other words, a blank check.

          • http://www.adamsdrafting.com/ Ken Adams

            You’re oversimplifying, or rather I was. When I say “care about,” I don’t mean that in some sort of touchy-feely way. When the actor is a party, use the active voice. When the actor is a nonparty, the passive voice might be a viable option. In the example at issue, I think it sounds a little off to have legislation be the actor.

            And with this particular example, we’re not dealing here with good choice and bad choice. It’s more subtle than that, and I can only make the best call I can, drawing on whatever reserves of semantic acuity I can muster.

            You can look forward to this example appearing in MSCD4!

  • AWrightBurkeMPhil

    “For” takes the prize, but let us not forget its neglected synonym “anent.”